Punjab-Haryana High Court
His Highness The Maharaja Of The ... vs State Of Punjab And Ors. on 20 August, 1998
Equivalent citations: AIR1999P&H116, AIR 1999 PUNJAB AND HARYANA 116, (1998) 4 RECCIVR 280 (1999) 3 LANDLR 57, (1999) 3 LANDLR 57
Author: N.C. Khichi
Bench: N.C. Khichi
JUDGMENT Jawahar Lal Gupta, J.
1. The plaintiff-appellant filed a suit for the recovery of Rs. 25 lacs along with interest @ 12% from the date of institution. It was decreed by the trial Court vide its judgment dated March 30, 1989. The appeal filed by the defendants viz., the State of Punjab etc. having been allowed by the learned single Judge, the plaintiff has filed this Letters Patent Appeal. The facts may be briefly noticed.
2. His late Highness Maharaja Jagatjit Singh was the Sovereign Ruler of the Erstwhile State of Kapurthala. He was the grandfather of the appellant. It is alleged that Maharaja Jagatjit passed an order on May 28, 1948 that : "The amount of Rs. 50,00,000/- (Rupees fifty lacs) that is lying in the Kapurthala treasury as State Reserve Fund shall stand divided into two parts one part of Rs. 25,00,000/-.......... shall be transferred to his house hold account and the other part of the said amount shall be used for the beneficial purposes of the Kapurthala State......" On August 20, 1948 the erstwhile Princely States including the State of Karnataka were brought under the Administration of His Highness the Raj Pramukh of Pepsu and a new State called the Patiala and East Punjab States Union was formed. On the formation of the new Slate Union, the appellant alleges that " the Union became trustee on behalf of the said sovereign ruler and bound to comply with the order of His Late Highness of the said State and as the said Union has merged in the State of Punjab, so the Punjab Government is a trustee of the said amount of His Late Highness, Maharaja Jagatjit Singh, the Maharaja of Kapurthala." The appellant further states that the amount to Rs. 25 lacs "was not at all transferred and still lying in the Punjab Government treasury as trustee of Maharaja." The main cause of non-compliance of the order was that "with the formation of the new Union, the record of the Erstwhile Kapurthala State and the Household Department of the Maharaja of Kapurthala was removed by the successor. Government of Patiala and there, it was kept in a confused heap and it is well nigh impossible to trace out any file or order from the said heap." The appellant's attorney while inspecting the records came across the order dated May 28, 1948 in August , 1985. After "a good deal of inspection of the Household Department record ...... the plaintiff has found that the said amount of Rs. 25,00,000/- that was earmarked as Household Department amount by the Late Maharaja of Kapurthala.......... has not been transferred...........
and is yet lying with the Punjab Government treasury". On this basis, it is claimed that the cause of action had accrued in August, 1985 "when the plaintiff's attorney traced out the said order from the heap of record......"
3. On these premises, the appellant had prayed for the award of a decree for a sum of Rs. 25 lacs with interest @ 12% per annum from the date of the filing of the suit.
4. A written statement was filed on behalf of the defendants. It was inter alia pleaded that the suit was not maintainable in view of Article XII of the Covenant entered into by the Rulers of the State of Faridkot. Jind, Kapurthala! Malefkotla, Nabha, Patiala, Kalsia and Nalagarh with the Government of India for the formation of Pepsu. According to the provision in the Covenant, the dispute had to be referred to the Government of India. No claim could be made in respect of any property after June 30, 1949. It was further pleaded that the suit was barred by limitation. Even on merits, the claim was controverted. The appellant had filed a replication.
5. On the pleadings of the parties, the following issues were framed :--
1. Whether the plaintiff is entitled to recover Rs. 25,00,000/- ? OPP.
2. Whether the suit is not maintainable in the present form ? OPD.
3. Whether the suit of the plaintiff is beyond limitation ?OPD.
4. Whether the suit is bad for non-joinder of necessary parties ? OPD.
5. Whether the plaintiff has no right or authority to file the present suit ? OPD.
6. Whether the notice under Section 80, CPC has not been served on the defendant before filing the suit? OPD.
7. Whether the plaintiff is estopped from filing the suit by his own act and conduct ? OPD.
8. Whether this Court has no jurisdiction ? OPD.
9. Relief.
6. The trial Court held that the appellant was entitled to recover the amount of Rs. 25 lacs. Issue Nos.2, 4, 7 and 8 were not pressed. Issue No. 3 was; answered against the defendants. It was held that the suit was within limitation. Issue Nos. 5 and 6 were decided in favour of the plaintiff-appellant. On this basis, the suit was decreed.
7. On appeal, the learned single Judge took the view that "a reading of the ocular evidence in conjunction with the documentary evidence in unimpeachable terms suggests that the claim of the plaintiff-respondent is patently false." It was further held that the "instant suit was filed on June 4, 1988 i.e. 40 years after the date when the claim was rejected by the Secretary in the Ministry of States. The claim is hopelessly barred by time and the trial Judge by the process of reasoning which are illogical and illegal, tried to hold that the suit was within limitation." The findings recorded by the trial Court were, thus, reversed. The suit was dismissed. Hence this Letters Patent Appeal.
8. Learned counsel for the parties have addressed arguments with regard to the findings recorded by the learned single Judge on Issue Nos. 1 and 3 only. On behalf of the plaintiff-appellant, it has been contended by Mr. Ashok Gupta that the order dated May 28, 1948 passed by His Highness was a Firman which had the force of law. It entitled the plaintiff-appellant to recover the amount of Rs. 25 lacs with interest from the defendant-respondents. Since this amount had not been transferred to the Household Accounts of His Highness, the money remained in trust with the respondents. Thus, the suit should have been decreed and the plea of limitation was not available to the respondents.
9. This claim has been controverted on behalf of the respondents. It has been contended by Mrs. Charu Tuli that there is no evidence on record to show that the appellant had any money in the treasury on May 28, 1948. In any event; learned counsel submits that the suit was hopelessly barred by limitation and has been rightly dismissed by the learned single Judge.
10. Thus, the two issues which need consideration are Issue Nos. 1 and 3.
Issue No. 1: Whether the plaintiff is entitled to recover Rs. 25 lacs ?
11. The sequence of events may be briefly noticed. On May 5, 1948, the Rulers of the nine Erstwhile Princely States had executed a Covenant. A copy of this document ison record as Ex. D.1. This Covenant was "entered into" for the "formation of Patiala and East Punjab States Union". By this Covenant, the Rulers of the Erstwhile Princely States had "resolved to entrust to a Constituent Assembly consisting of elected representatives of the people, the drawing up of a democratic Constitution for the State within the framework of the Constitution of India, to which" they had "already acceded......."
By Article VI, it was inter alia provided that "the Ruler of each Covenanting State shall as soon as may be practicable and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh ......" By Article XII, it was provided as under :--
1. The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoy ment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh.
2. He shall furnish to the Raj Pramukh before the 20th day of Sept. 1948, and inventory of all the immovable properties, securities and cash balances held by him as such private property.
3. If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to such person as the Government of India may nominate in consultation with the Raj Pramukh and the deci sion of that person shall be final and binding oh all parties concerned;
Provided that no such dispute shall be so referable after the 31st day of Dec. 1948."
12. In paragraph 6 of the plaint, the appellant has averred that the Patiala and East Punjab States Union had come into existence on May 15, 1948. Therefore, on May 28, 1948, the alleged Shanti Firman was issued. A copy has been produced on record as Ex. PW2/A. In this document, it was inter alia said as under:--
"....... I have very little personal money of my own. I wish to take rupees twentyfive lakhs from the State Reserve Fund as a very essential and minimum reserve for my Household particularly in view of the fact that my State has now joined the East Punjab States and Patiala Union. It is also my wish that the remaining sum of rupees twenty five lakhs should be exclusively used for beneficent activities within my State. I am therefore pleased to order that a sum of rupees twentyfive lakhs should be transferred to my Household Account out of the State Reserve Fund and the remaining sum of rupees twentyfive lakhs should be spent on beneficent activities within my State.
Sd/-
MAHARAJA Sd/-
Chateau Kapurthala, Paramjit Singh Mussoorie, Tikka Raja, 28-5-1948. President State Council."
13. Less than two months later, His Highness Maharaja Jagatjit Singh had unfortunately passed away. It has been stated before us that on his death, Mr. Paramjit Singh, the fatherof the appellant had become the Maharaja on July 20, 1948. He had admittedly breathed his last in June 1955. Thereafter, in August 1985, the order dated May 28, 1948, an extract from which has been reproduced above, was noticed by the appellant's attorney. About three years later, in June 1988, the instant suit out of which the present appeal has arisen, was filed.
14. This is the complete sequence of events.
15. It is in the background of these events that the correctness of the claim made by the appellant has to be examined.
16. The first question that arises for consideration is -- Did the plaintiff's grandfather have an amount of Rs. 50 lacs in the Treasury?
17. The cash book was the best evidence. It was not produced. It could have shown as to whether or not the money was actually there. It could have also indicated as to whether or not any amount had been transferred to the Household Account. The appellant did not even attempt to produce this document. Why ? There is no explanation. Thus, there is no evidence to show that on May 28, 1948, an amount of Rupees Fifty lacs was available in the Kapurthala State Treasury.
18. Even if it is assumed that the money was actually there, it passes all comprehension as to why the plaintiff's father Tikka Raja Paramjit Singh who was admittedly a signatory to the 'Shahi Firman', executed by His Late Highness Maharaja Jagatjit Singh on May 28, 1948, did not take any steps to make a claim for the handsome sum of Rs. 25 lacs till the date of his death in June 1955. He was admittedly the co-author of the order. He was aware of its contents. Undeniably, he was fully aware of the factual position. Still, no claim was made by him. Why ? There is no explanation on the record. Still further, it has come on record that His Late Highness Maharaja Jagatjit Singh had addressed a communication which is virtually a reproduction of the document dated May 28, 1948 to Shri V.P. Menon, the Secretary, Ministry of States, Government of India, New Delhi. This letter appears to have been sent on May 27, 1948 i.e. a day before the execution of the 'Shahi Firman' dated May 28, 1948. The reply was received vide latter dated June2/4, 1948. It is Ex. D.3. Mr. V.P. Menon had observed as under :--
"Your letter of the 27th May was handed over to me by the Tika Raja. I am at present examining the position of your Estate in the United Provinces and shall write to you again. In my conversation with you regarding the Reserve Fund, I do not remember to have committed myself to Your Highness utilising any amount from it. In certain hard cases the States Ministry has allowed certain concessions but for Your Highness to utilise 25 lakhs out of a balance of 50 lakhs will evoke serious public criticism and will not be acceptable to Sardar. I shall however be prepared to discuss this with you when I meet you again. With kind regards.
Yours sincerely, Sd/-
V. P. Menon."
19. In spite of this communication, no action whatsoever was taken either by His Late Highness Maharaja Jagatjit Singh or by his succession Tikka Raja Paramjit Sjngh. The silence is not without significance. Had the claim been genuine, they would have taken all possible steps to recover the amount.
20. Mr. Ashok Gupta, learned counsel for the appellant has, however, contended that it was for the defendant-respondents to produce the cash book. It was for them to adduce the relevant evidence. They having failed to produce it, an inference should be drawn against them.
21. The contention is wholly misconceived. The onus of proving facts on which the claim is based is on the claimant. It was for the appellant to prove that he had a right to recover the amount of Rs. 25 lacs. He had to prove his claim. He had to summon all relevant record and to produce the evidence. The fact that he did not produce the best evidence would inevitably lead to an inference against him.
22. At this stage, it also deserves mention that Mr. Roshan Lal Chauhan, Treasury Officer, Kapurthala was produced by the respondents as a witness. He was examined as DW 1. He had opened his statement by saying that "no amount of 25 lacs was ever lying with the Treasury at Kapurthala during they year 1948." In cross examination, he had mentioned that "Cash book is a permanent record and is never destroyed, I have not brought the same as it is not summoned from me." Even at that stage, no request was made on behalf of the plaintiff-appellant for summoning the cash book. Why ? The reason is not difficult to imagine.
23. Faced with this situation, Mr. Ashok Gupta has contended that the appellant had discharged the onus by producing on record the document Ex. PW2/I. According to the learned counsel this document is a conclusive evidence of the fact that an amount of Rs. 50 lacs was available in the treasury of the Erstwhile Princely State of Kapurthala on May 28, 1948.
24. We have examined this document. It is a photo copy of the "Explanatory Memorandum of the Budget of Patiala and East Punjab Stales Union for the year 2006 Bikrami 1949-50." This Memorandum for the year 1949-50 can furnish no proof with regard d to the availability of funds in the Kapurthala Treasilry on May 28, 1948. Still further, in spite of being repeatedly asked, learned counsel for the appellant has not been able to pin point and refer to any evidence in this document which may clearly show that an amount of Rs. 50 lacs was lying in the State Reserve Fund of the Kapurthala State on May 28, 1948. Learned counsel referred to the figures appearing at Pago 19 where a statement of Reserve Fund of the Covenanting Stales has been given. The document, is not very clear. Irrespective of that, the following entry appears :
General Reserve Fund and 45,59,600.00 Development Fund Kapurthala
25. The amount is substantial. However, it is not Rs. 50 lacs. Still further, even if it is assumed that this amount was taken over on August 20, 1948, it does not show that it was available in the Treasury on May 28, 1948.
26. Added to all this is the fact that even the plaintiff himself did not appear as a witness. He only produced his attorney. Why did the plaintiff stay away from the Court? Why was he not ready and willing to face the cross examination ? Why could he not testify with regard to the averments made in the plaint ? There is no answer. Still further, when the attorney Mr. Pritpal Singh was cross-examined, he had to admit that he did not know as to which department "deals with the Reserve Fund". He also did not "know whether the items in the list were mentioned by Maharaja Jagatjit Singh". In fact, according to Article XII of the Covenant, an inventory of the immovable properties, securities and cash balances held by a Ruler as private property had to be furnished to the Raj Pramukh before Sept. 20, 1948. It has not been suggested that such an inventory was furnished or that any claim with regard to the amount of Rs. 25 lacs was made therein. Equally, it was also provided in the Covenant that "any dispute" was to be referred to the nominee of the Government of India for decision. Such a dispute had to be raised and referred before Dec. 31, 1948. There is not even a suggestion that a dispute was raised.
27. In view of all these facts, it cannot be said that the appellant has discharged the onus of proving his entitlement to the amount of Rs. 25 lacs. In fact, the long silence casts a serious doubt about the correctness of the claim.
28. Mr. Gupta referred to the decision of their Lordships of the Supreme Court in Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352 to contend that the Rulers of Erstwhile Princely States were competent to issue Firmans and that their word was the law. It is undoubtedly correct that the erstwhile Princely Rulers represented the authority of the State. They combined in themselves the legislature, the Judiciary and the Executive -- all three rolled into one. But it cannot be said that every document signed by them constituted the law. It is only when a document laid down a binding rule of conduct that a Firman could be said to have been issued. Irrespective of this, even if it is assumed that the order dated May 28, 1948 was a Shahi Pharman, we areclearly of the view that this document is no evidence of the fact that the money was actually there in the Treasury on May 28, 1948. Still further, even if it is assumed that the money was there, there is nothing to indicate that it was not actually transferred to the Household Account of His Highness.
29. In view of the above evidence on record, it cannot be said that the plaintiff has proved his claim for the amount of Rs. 25 lacs. Thus, we find no ground to differ with the view taken by the learned single Judge with regard to Issue No. 1.
Issue No. 330. Mr. Gupta contended that the amount of Rs. 25 lacs was held by the Respondent-State of Punjab as a trust. Thus, the provisions of Section 10 of the Limitation Act, 1961 would be attracted and the suit would not be barred by limitation. Is it so?
31. Section 10 is applicable to a case where property has come to vest in a person as a trust: The trust is for a specific purpose. If a suit is filed against such a person in whom the property has vested in trust or his legal representatives for the purpose of following the property in the hands of such person, the plea of limitation shall not be available to the respondent. In the present case, the short question that arises is -- Did the plaintiff or his predecessors-in-interest transfer the property in trust to any person? The answer is an emphatic no. In fact, a reading of order dated May 28, 1948 clearly shows that the predeces-sors-in-interest of the plaintiff merely decided to transfer the property to their own Household Account. It was not vested in any person in trust for any specific purpose. No obligation had been cast on any one which may be based on trust and confidence. In such a situation, the provisions of Section 10 cannot be invoked. Learned counsel has not been able to show that the conditions precedent for the application of Section 10 are satisfied in the present case. Resultantly, the plea cannot be sustained.
32. It is the admitted position that the appel-lanthad filed the suit on June 14, 1988. The claim is based on the document dated May 28, 1948. The claim had been rejected by the Secretary of State vide letter dated June 24, 1948. According to the terms of the Covenant, the claim had to be made before December 31, 1948. Even if the stipulation in the Covenant is momentarily overlooked and the benefit of the provisions of the Limitation Act is given, the suit could have been filed within the period prescribed under the residuary clause. Even that was not done. The appellant filed the suit after a lapse of about 40 years. The delay is too long. It is inexcusable. It defeats the appellant's claim. Thus, even the finding on issue No. 3 as recorded by the learned single Judge is affirmed,
33. No other point has been raised.
34. In view of the above, we find no merit in this appeal. It is, consequently, dismissed. However, in the circumstances of the case, we make no order as to costs.